Due to the chasm in Brazil
that exists between law on paper and "law" in practice, anyone
wishing to understand how the country works in reality will need also to
consider the ways in which people are able to excuse themselves from submission
to laws.

In
order to understand the reasons for problems blocking the rule of law from
taking hold in Brazilian society, this article explains three curious
expressions that are quite important in helping reveal crucial aspects of
Brazil's legal culture: 'a lei não pegou' (the law did not take hold); 'para
inglês ver' (for the English to See); and 'jeito'.

A lei
não pegou (The law did
not take hold)

One
would be quite right in asserting that many laws have been introduced in Brazil with the
almost certain knowledge that they will never be respected. Thus, as law
professor Keith S. Rosenn points out: "Brazilians refer to law much in the
same manner as one refers to vaccinations. There are those who take, and those
who do not".

He
gives the insightful example of a Minister of Justice, Francisco Campos, who in
the 1930s responded to criticisms about the enactment of a new law that was
identical to another enacted by the same government only a year earlier by
saying: "There is no harm done, my son. We are going to publish this one
because the other não pegou (did not take hold)".

A lei
não pegou (the law did not take hold) is
the phrase that Brazilians commonly apply to the numerous instances in which
positive laws can exist in theory but never in practice. Such laws are
ineffectual despite their putative validity. They do not take hold when they
supposedly contain unrealistic provisions related to such things as price
controls, labour laws, or interest rates.

A
good example of unrealistic provision is found in the original text of the
Brazilian Constitution, which contained a section fixing the level of interest
rates in the country at 12% a year. The provision was never truly enforced,
because doing so would completely paralyse the country's economic activities.

But
one of the best examples of a well-known legislation not taking hold involves
the prohibition of a popular gambling racked called jogo do bicho (animal's
game). The law was enacted more than one hundred years ago, but this illegal
activity currently employs more than 700,000 people and grosses more than $150
million dollars a month.

Although
the game still remains illegal, candidates for public office have normally
sought support from gambling bosses, "who are known to contribute heavily
to political campaigns". In Rio
de Janeiro , gambling bosses sponsor official events,
such as the world-renowned Carnaval, as well as the electoral campaigns of
numerous politicians, including high-ranking government authorities.

Para inglês ver (For the English to See)

Para
inglês ver (for the English to see) is
another curious expression of Brazil
's culture. It was coined in the first quarter of the nineteenth century, and
now refers to any situation where something on the surface appears for all
intents and purposes to have been done, while beneath nothing has, in actual
fact, changed. Since it is quite an illuminating expression, it is worthwhile
giving a proper account of its origins.

Under
pressure from Great Britain
, which had effectively helped Brazil
in its negotiations for independence from Portugal , the Brazilian government
signed a treaty in 1826 promising to abolish the slave trade within four years.
On 7 November 1831, the pledge appeared to be honoured, with the enactment by
the Brazilian Parliament of a statute declaring the freedom of all Africans
entering the country as slaves.

But
what the British government did not know was that the 1831 statute, as
Brazilians started saying amongst themselves, was only "for the English to
see". The members of the Brazilian elite did not really wish to stop the
much profitable business of slave trade, as they thought its end would eliminate
the supply of labour.

Behind
the large façade, over a twenty-year period following the enactment of the 1831
legislation, around one million Africans were illegally brought to Brazil as
slaves. In the 1880s, most of the slaves were actually people, or relatives of
people, who were illegally brought to the country after 1831. Slaveholders
bypassed the law by registering the slaves as having been imported before the
enactment of that legislation.

Africans
who disembarked on the coast of Brazil
found no one to set them free as the law required. According to Joaquim Nabuco,
the great leader of the Brazilian anti-slavery movement, "the only pleas
on their behalf were made by British ministers and were heard in the British
Parliament". Thus, in 1845 the Parliament of Great Britain decided to
enact the Aberdeen Bill, authorising the British admiralty courts to judge and
condemn any Brazilian ship involved in slave-trading.

The
British action was legally justified on the basis of a treaty signed by both
countries in 1826 condemning the slave trade as a form of piracy. Under huge
pressure from powerful Great Britain, the Brazilian Parliament, on 4 September
1850, rushed to pass new legislation establishing harsher penalties for anyone
involved with the slave trade. This law was much better applied, being not
merely, in this case, just "for the English to see". Nevertheless, in
1851 alone, more than 3,000 Africans were still illegally brought to the
country as slaves.

The
Brazilian government has ever since been enacting many laws that are just for
the English (or anybody else) to see. In such circumstances, a law is enacted
so as to confer the false impression that authorities are really willing to do
something about the matter of concern, while in practice nothing is done at
all. The 1988 Constitution contains many legal provisions that are only for the
"English to see".

One
amongst many of them is Article 196, which declares: "Health is a right of
every citizen and a duty of the state, which shall be guaranteed by means of
social and economic policies aimed at reducing the risk of illness and other
hazards and at the universal and equal access to actions and services for its
promotion, protection and recovery".

In
practice, however, public hospitals are overcrowded, understaffed, badly
equipped, and poorly maintained. "They often provide indifferent care and
more than occasionally subject patients to additional risks, such as infection
from contaminated blood".

"Jeito"
(or "Jeitinho")

American
historian Robert M. Levine, director of Latin American Studies at the University of Miami , has made the comment that
Brazilians are a kind of people who "pride themselves on being especially
creative in their array and variety of gambit suitable for bending rules".
In fact, they have so much pride in this that they have actually elevated the
bending of legal norms to the status of a highly prized institution: the jeito.

This
term can be roughly translated as a "knack" or a "clever
dodge". Jeito, explains law professor Joseph A. Page, "is a rapid,
improvised, creative response to law, rule, or custom that on its face prevents
someone from doing something". As such, it always involves a conscious act
of breaking formal rules so as to personalise a situation ostensibly governed
by an impersonal norm.

According
to the Brazilian sociologist Fernanda Duarte, jeito is inherently
personalistic. As she explains, "it requires a certain type of
"technique" involving the conscious use of culturally valued personal
attributes (eg: a smile, a gentle, pleading tone of voice); it seeks short-term
benefits; it is explicitly acknowledged and described by Brazilians as part of
their cultural identity... So deeply entrenched is this practice in Brazil that it
has become intertwined with constructions of Brazilianess".

One
must become aware of the reality of jeito in order to properly
understand the Brazilian legal system. Whereas the bending of legal norms for
the sake of expediency occurs, to a certain degree, in any country of the
world, Brazil
has curiously institutionalised it. The institution of jeito is, therefore, the
uniquely Brazilian way of achieving a desired result amid the adversities of
the formal legal system.

The
social mechanism known as jeito can be adopted in legal and non-legal
situations. A jeito can be applied, for instance, when the queue in a
bank is too long and a person argues that he cannot wait for his turn. Lawyers
can also apply it in the form of a "favour" (legal or illegal)
requested to court employees. Finally, it can also be granted by a public
inspector who condones the failure of a company to comply with a statutory
provision which is somehow considered to be uneconomic, unjust or
unrealistic.

Because
of the many instances in which jeito can be applied, the bypassing of legal
norms has become more the rule rather than the exception. In fact, the bending
of laws bears no stigma in the country if it acts as a solution to unfair laws
or absurdities of bureaucracy.

Jeito means, in this situation, figuring out a fair
solution over such inconveniences, acting as a tool by which people can avoid
the many obstructions and barriers the convoluted legal system places in their
path. It is, therefore, seen by Brazilian society as a "fair"
solution in the face of the unreasonable barriers created by the highly complex
and convoluted legal system.

Although
jeito has such understandable justifications, it nevertheless produces
very undesirable consequences. There is no doubt that a system that features
such an endemic and astonishing level of informality is obviously inimical to
the generation of the rule of law.

As
Rosenn points out, "once the principle that officials and private citizens
may reinterpret or ignore laws they deem overly restrictive or unwise is
condoned, its limitation is extremely difficult. Unjust, discriminatory law
enforcement and the breakdown of legitimacy may well be the result".

Although
anybody can request a jeito, one might deduce that a rich person has
obviously more jeito than a poor person, in the sense that it is far
easier to obtain a jeito if one can somehow reward the person who is
providing it. Moreover, jeito is very often entwined with corruption,
because "some civil servants become aware of a law's uneconomic and unjust
aspects only after their palm has been greased".

Bribery
is indeed the common recourse to jeitos not otherwise provided by
personal acquaintance. As Levine points out, "jeitos fall halfway
between legitimate favours and out-and-out corruption, but at least in popular
understanding they lean in the direction of the extralegal. Favours, in
addition, imply a measure of reciprocity, a courtesy to be returned. One never
pays for a favour, however; but a jeito, which is often granted by
someone who is not a personal acquaintance, must be accompanied by a tip or
even a larger payoff.

Unfortunately,
the realization of the rule of law requires generality, certainty, and respect
for the law. But when Brazilians simply ignore laws they deem restrictive or
unfair, unjust discriminatory law enforcement and breakdown of legitimacy may
well be the result. The cost of the constant resort to jeito is
therefore widespread disregard for the rule of law in Brazil .

Augusto
Zimmermann is a Law Lecturer at Murdoch University, Western Australia .

This
paper is based on his article "Law and Society in Brazil : Prevailing Perceptions of
Law in Brazilian Society", which is due to appear in a forthcoming
issue of the International Journal of Private Law.